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Guidance for Prosecutors Regarding Criminal Discovery

January 4, 2010

MEMORANDUM FOR DEPARTMENT PROSECUTORS

FROM:

David W. Ogden
Deputy Attorney General

SUBJECT:

Guidance for Prosecutors Regarding Criminal Discovery

The discovery obligations of federal prosecutors are generally
established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C.
§ 3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). In addition,
the United States Attorney's Manual describes the Department's policy for
disclosure of exculpatory and impeachment information. SeeUSAM 9-5.001.
In order to meet discovery obligations in a given
case, Federal prosecutors must be familiar with these authorities and with
the judicial interpretations and local rules that discuss or address the
application of these authorities to particular facts. In addition, it is
important for prosecutors to consider thoroughly how to meet their discovery
obligations in each case. Toward that end, the Department has adopted the
guidance for prosecutors regarding criminal discovery set forth below. The
guidance is intended to establish a methodical approach to consideration of
discovery obligations that prosecutors should follow in every case to avoid
lapses that can result in consequences adverse to the Department's pursuit
of justice. The guidance is subject to legal precedent, court orders, and
local rules. It provides prospective guidance only and is not intended to
have the force of law or to create or confer any rights, privileges, or
benefits. See United States v. Caceres, 440 US. 741 (1979).

The guidance was developed at my request by a working group of
experienced attorneys with expertise regarding criminal discovery issues
that included attorneys from the Office of the Deputy Attorney General, the
United States Attorneys' Offices, the Criminal Division, and the National
Security Division. The working group received comment from the Office of the
Attorney General, the Attorney General's Advisory Committee, the Criminal
Chiefs Working Group, the Appellate Chiefs Working Group, the Professional
Responsibility Advisory Office, and the Office of Professional
Responsibility. The working group produced this consensus document intended
to assist Department prosecutors to understand their obligations and to
manage the discovery process.

By following the steps described below and being familiar with laws and
policies regarding discovery obligations, prosecutors are more likely to
meet all legal requirements, to make considered decisions about disclosures
in a particular case, and to achieve a just result in every case. Prosecutors
are reminded to consult with the designated criminal discovery coordinator
in their office when they have questions about the scope of their discovery
obligations. Rules of Professional Conduct in most jurisdictions also impose
ethical obligations on prosecutors regarding discovery in criminal cases.
Prosecutors are also reminded to contact the Professional Responsibility
Advisory Office when they have questions about those or any other ethical
responsibilities.

It is the obligation of federal prosecutors, in preparing for trial, to
seek all exculpatory and impeachment information from all members of the
prosecution team. Members of the prosecution team include federal, state,
and local law enforcement officers and other government officials
participating in the investigation and prosecution of the criminal case
against the defendant.

USAM 9-5.001.
This search duty also extends to information prosecutors are required to
disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the
Jencks Act.

In most cases, "the prosecution team" will include the agents
and law enforcement officers within the relevant district working on the
case. In multi-district investigations, investigations that include both
Assistant United States Attorneys and prosecutors from a Department
litigating component or other United States Attorney's Office (USAO), and
parallel criminal and civil proceedings, this definition will necessarily be
adjusted to fit the circumstances. In addition, in complex cases that
involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA,
etc.), or other non-criminal investigative or intelligence agencies, the
prosecutor should consider whether the relationship with the other agency is
close enough to make it part of the prosecution team for discovery
purposes.

Some factors to be considered in determining whether to review
potentially discoverable information from another federal agency
include:

Whether the prosecutor and the agency conducted a joint investigation or
shared resources related to investigating the case;

Whether the agency played an active role in the prosecution, including
conducting arrests or searches, interviewing witnesses, developing
prosecutorial strategy, participating in targeting discussions, or otherwise
acting as part of the prosecution team;

Whether the prosecutor knows of and has access to discoverable
information held by the agency;

Whether the prosecutor has obtained other information and/or evidence
from the agency;

The degree to which information gathered by the prosecutor has been
shared with the agency;

Whether a member of an agency has been made a Special Assistant United
States Attorney;

The degree to which decisions have been made jointly regarding civil,
criminal, or administrative charges; and

The degree to which the interests of the parties in parallel proceedings
diverge such that information gathered by one party is not relevant to the
other party.

Many cases arise out of investigations conducted by multi-agency task
forces or otherwise involving state law enforcement agencies. In such cases,
prosecutors should consider (1) whether state or local agents are working on
behalf of the prosecutor or are under the prosecutor's control; (2) the
extent to which state and federal governments are part of a team, are
participating in a joint investigation, or are sharing resources; and (3)
whether the prosecutor has ready access to the evidence. Courts will
generally evaluate the role of a state or local law enforcement agency on a
case-by-case basis. Therefore, prosecutors should make sure they understand
the law in their circuit and their office's practice regarding discovery in
cases in which a state or local agency participated in the investigation or
on a task force that conducted the investigation.

Prosecutors are encouraged to err on the side of inclusiveness when
identifying the members of the prosecution team for discovery purposes.
Carefully considered efforts to locate discoverable information are more
likely to avoid future litigation over Brady and Giglio issues
and avoid surprises at trial.

Although the considerations set forth above generally apply in the
context of national security investigations and prosecutions, special
complexities arise in that context. Accordingly, the Department expects to
issue additional guidance for such cases. Prosecutors should begin
considering potential discovery obligations early in an investigation that
has national security implications and should also carefully evaluate their
discovery obligations prior to filing charges. This evaluation should
consider circuit and district precedent and include consultation with
national security experts in their own offices and in the National Security
Division.

B. What to Review

To ensure that all discovery is disclosed on a timely basis, generally
all potentially discoverable material within the custody or control of the
prosecution team should be reviewed.[FN2] The review process should cover
the following areas:

1. The Investigative Agency's Files: With respect to Department of
Justice law enforcement agencies, with limited exceptions,[FN3] the prosecutor
should be granted access to the substantive case file and any other file or
document the prosecutor has reason to believe may contain discoverable
information related to the matter being prosecuted.[FN4] Therefore, the
prosecutor can personally review the file or documents or may choose to
request production of potentially discoverable materials from the case
agents. With respect to outside agencies, the prosecutor should request
access to files and/or production of all potentially discoverable material.
The investigative agency's entire investigative file, including documents
such as FBI Electronic Communications (ECs), inserts, emails, etc. should be
reviewed for discoverable information. If such information is contained in a
document that the agency deems to be an "internal" document such as an
email, an insert, an administrative document, or an EC, it may not be
necessary to produce the internal document, but it will be necessary to
produce all of the discoverable information contained in it. Prosecutors
should also discuss with the investigative agency whether files from other
investigations or non-investigative files such as confidential source files
might contain discoverable information. Those additional files or relevant
portions thereof should also be reviewed as necessary.

2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source
(CS) Files: The credibility of cooperating witnesses or informants will
always be at issue if they testify during a trial. Therefore, prosecutors
are entitled to access to the agency file for each testifying CI, CW, CHS,
or CS. Those files should be reviewed for discoverable information and
copies made of relevant portions for discovery purposes. The entire
informant/source file, not just the portion relating to the current case,
including all proffer, immunity, and other agreements, validation
assessments, payment information, and other potential witness impeachment
information should be included within this review.

If a prosecutor believes that the circumstances of the case warrant
review of a non-testifying source's file, the prosecutor should follow the
agency's procedures for requesting the review of such a file.

Prosecutors should take steps to protect non-discoverable, sensitive
information found within a CI, CW, CHS, or CS file. Further, prosecutors
should consider whether discovery obligations arising from the review of CI,
CW, CHS, and CS files may be fully discharged while better protecting
government or witness interests such as security or privacy via a summary
letter to defense counsel rather than producing the record in its
entirety.

Prosecutors must always be mindful of security issues that may arise
with respect to disclosures from confidential source files. Prior to
disclosure, prosecutors should consult with the investigative agency to
evaluate any such risks and to develop a strategy for addressing those risks
or minimizing them as much as possible, consistent with discovery
obligations.

3. Evidence and Information Gathered During the Investigation:
Generally, all evidence and information gathered during the investigation
should be reviewed, including anything obtained during searches or via
subpoenas, etc. As discussed more fully below in Step 2, in cases involving
a large volume of potentially discoverable information, prosecutors may
discharge their disclosure obligalions by choosing to make the voluminous
information available to the defense.

4. Documents or Evidence Gathered bv Civil Attorneys and/or
Regulatorv Agency in Parallel Civil Investigations: If a prosecutor has
determined that a regulatory agency such as the SEC is a member of the
prosecution team for purposes of defining discovery obligations, that
agency's files should be reviewed. Of course, if a regulatory agency is not
part of the prosecution team but is conducting an administrative
investigation or proceeding involving the same subject matter as a criminal
investigation, prosecutors may very well want to ensure that those files are
reviewed not only to locate discoverable information but to locate
inculpatory information that may advance the criminal case. Where there is
an ongoing parallel civil proceeding in which Department civil attorneys are
participating, such as a qui tam case. the civil case files should also be
reviewed.

5. Substantive Case-Related Communications:
"Substantive" case-related communications may contain discoverable
information. Those communications that contain discoverable information
should be maintained in the case file or otherwise preserved in a manner
that associates them with the case or investigation. "Substantive"
case-related communications are most likely to occur (1) among prosecutors
and/or agents, (2) between prosecutors and/or agents and witnesses and/or
victims, and (3) between victim˙witness coordinators and witnesses and/or
victims. Such communications may be memorialized in emails, memoranda, or
notes. "Substantive" communications include factual reports about
investigative activity, factual discussions of the relative merits of
evidence, factual information obtained during interviews or interactions
with witnesses/victims, and factual issues relating to credibility.
Communications involving case impressions or investigative or prosecutive
strategies without more would not ordinarily be considered discoverable, but
substantive case-related communications should be reviewed carefully to
determine whether all or part of a communication (or the information
contained therein) should be disclosed.

Prosecutors should also remember that with few exceptions (see, e.g.,
Fed.R.Crim.P. 16(a)(1)(B)(ii)), the format of the information does not
determine whether it is discoverable. For example. material exculpatory
information that the prosecutor receives during a conversation with an agent
or a witness is no less discoverablc than if that same information were
contained in an email. When the discoverable information contained in an
email or other communication is fully memorialized elsewhere, such as in a
report of interview or other document(s), then the disclosure of the report
of interview or other document(s) will ordinarily satisfy the disclosure
obligation.

6. Potential Giglio Information Relating to Law Enforcement
Witnesses: Prosecutors should have candid conversations with the federal
agents with whom they work regarding any potential Giglio issues,
and they should follow the procedure established in
USAM 9-5.100 whenever necessary
before calling the law enforcement employee as a witness. Prosecutors should
be familiar with circuit and district court precedent and local practice
regarding obtaining Giglio information from state and local law
enforcement officers.

7. Potential Giglio Information Relating to Non-Law
Enforcement Witnesses and Fed.R.Evid. 806 Dec!arants: All potential
Giglio information known by or in the possession of the prosecution
team relating to non-law enforcement witnesses should be gathered and
reviewed. That information includes, but is not limited to:

Expectations of downward departures or motions for reduction of sentence

Assistance in a state or local criminal proceeding

Considerations regarding forfeiture of assets

Stays of deportation or other immigration status considerations

S-Visas

Monetary benefits

Non-prosecution agreements

Letters to other law enforcement officials (e.g. state prosecutors,
parole boards) setting forth the extent of a witness's assistance or making
substantive recommendations on the witness's behalf

Relocation assistance

Consideration or benefits to culpable or at risk third-parties

Other known conditions that could affect the witness's bias such as:

Animosity toward defendant

Animosity toward a group of which the defendant is a member or with
which the defendant is affiliated

Relationship with victim

Known but uncharged criminal conduct (that may provide an incentive to
curry favor with a prosecutor)

Prior actS under Fed.R.Evid. 608

Prior convictions under Fed.R.Evid. 609

Known substance abuse or mental health issues or other issues that could
affect the witness's ability to perceive and recall events

8. Information Obtained in Witness Interviews: Although not
required by law, generally speaking, witness interviews[FN5] should be
memorialized by the agent.[FN6] Agent and prosecutor notes and original
recordings should be preserved, and prosecutors should confirm with agents
that substantive interviews should be memorialized. When a prosecutor
participates in an interview with an investigative agent, the prosecutor and
agent should discuss note-taking responsibilities and memorialization before
the interview begins (unless the prosecutor and the agent have established
an understanding through prior course of dealing). Whenever possible,
prosecutors should not conduct an interview without an agent present to
avoid the risk of making themselves a witness to a statement and being
disqualified from handling the case if the statement becomes an issue. If
exigent circumstances make it impossible to secure the presence of an agent
during an interview, prosecutors should try to have another office employee
present. Interview memoranda of witnesses expected to testify, and of
individuals who provided relevant information but are not expected to
testify, should be reviewed.

Witness Statement Variations and the Duty to Disclose: Some
witnesses' statements will vary during the course of an interview or
investigation. For example, they may initially deny involvement in criminal
activity, and the information they provide may broaden or change
considerably over the course of time, especially if there are a series of
debriefings that occur over several days or weeks. Material variances in a
witness's statements should be memorialized, even if they are within the
same interview, and they should be provided to the defense as Giglio
information.

Trial Preparation Meetings with Witnesses: Trial preparation
meetings with witnesses generally need not be memorialized. However,
prosecutors should be particularly attuned to new or inconsistent
information disclosed by the witness during a pre-trial witness preparation
session. New information that is exculpatory or impeachment information
should be disclosed consistent with the provisions of
USAM 9-5.001 even if the
information is first disclosed in a witness preparation session. Similarly,
if the new information represents a variance from the witness's prior
statements, prosecutors should consider whether memorialization and
disclosure is necessary consistent with the provisions of subparagraph (a)
above.

Agent Notes: Agent notes should be reviewed if there is a reason
to believe that the notes are materially different from the memorandum, if a
written memorandum was not prepared, if the precise words used by the witness
are significant, or if the witness disputes the agent's account of the
interview. Prosecutors should pay particular attention to agent notes
generated during an interview of the defendant or an individual whose
statement may be attributed to a corporate defendant. Such notes may conlain
information that must be disclosed pursuant to Fed.R.Crim.P.
16(a)(1)(A)-(C)
or may themselves be discoverable under Fed.R.Crim.P.
16(a)(1)(B). See, e.g., United States v. Clark, 385 F.3d
609, 619-20 (6th Cir. 2004) and United States v. Vaffee, 380 F.Supp.2d II,
12-14 (D. Mass. 2005).

Step 2: Conducting the Review

Having gathered the information described above, prosecutors must ensure
that the material is reviewed to identify discoverable information. It would
be preferable if prosecutors could review the information themselves in
every case, but such review is not always feasible or necessary. The
prosecutor is ultimately responsible for compliance with discovery
obligations. Accordingly, the prosecutor should develop a process for review
of pertinent information to ensure that discoverable information is
identified. Because the responsibility for compliance with discovery
obligations rests with the prosecutor, the prosecutor's decision about how
to conduct this review is controlling. This process may involve agents,
paralegals, agency counsel, and computerized searches. Although prosecutors
may delegate the process and set forth criteria for identifying potentially
discoverable information, prosecutors should not delegate the disclosure
determination itself. In cases involving voluminous evidence obtained from
third parties, prosecutors should consider providing defense access to the
voluminous documents to avoid the possibility that a well-intentioned review
process nonetheless fails to identify material discoverable evidence. Such
broad disclosure may not be feasible in national security cases involving
classified information.

Step 3: Making the Disclosures

The Department's disclosure obligations are generally set forth in
Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. § 3500 (the Jencks Act),
Brady, and Giglio (collectively referred to herein as
"discovery obligations"). Prosecutors must familiarize themselves with each
of these provisions and controlling case law that interprets these
provisions. In addition, prosecutors should be aware that
USAM 9-5.001 details the
Department's policy regarding the disclosure of exculpatory and impeachment
information and provides for broader disclosures than required by
Brady and Giglio. Prosecutors are also encouraged to provide
discovery broader and more comprehensive than the discovery obligations. If a
prosecutor chooses this course, the defense should be advised that the
prosecutor is electing to produce discovery beyond what is required under
the circumstances of the case but is not committing to any discovery
obligation beyond the discovery obligations sct forth above.

Considerations Regarding the Scope and Timing of the Disclosures:
Providing broad and early discovery often promotes the truth-seeking mission
of the Department and fosters a speedy resolution of many cases. It also
provides a margin of error in case the prosecutor's good faith determination
of the scope of appropriate discovery is in error. Prosecutors are
encouraged to provide broad and early discovery consistent with any
countervailing considerations. But when considering providing discovery
beyond that required by the discovery obligations or providing discovery
sooner than required, prosecutors should always consider any appropriate
countervailing concerns in the particular case, including, but not limited
to: protecting victims and witnesses from harassment or intimidation;
protecting the privacy interests of witnesses; protecting privileged
information; protecting the integrity of ongoing investigations; protecting
the trial from efforts at obstruction: protecting national security
interests; investigative agency concerns; enhancing the likelihood of
receiving reciprocal discovery by defendants; any applicable legal or
evidentiary privileges; and other strategic considerations that enhance the
likelihood of achieving a just result in a particular case. In most
jurisdictions, reports of interview (ROIs) of testifying witnesses are not
considered Jencks material unless the report reflects the statement of the
witness substantially verbatim or the witness has adopted it. The Working
Group determined that practices differ among the USAOs and the components
regarding disclosure of ROIs of testifying witnesses. Prosecutors should be
familiar with and comply with the practice of their offices.

Prosecutors should never describe the discovery being provided as "open
file." Even if the prosecutor intends to provide expansive discovery, it is
always possible that something will be inadvertently omitted from production
and the prosecutor will then have unintentionally misrepresented the scope
of materials provided. Furthermore, because the concept of the "file" is
imprecise, such a representation exposes the prosecutor to broader
disclosure requirements than intended or to sanction for failure to disclose
documents, e.g. agent notes or internal memos, that the court may deem to
have been part of the "file." When the disclosure obligations are not clear
or when the considerations above conflict with the discovery obligations,
prosecutors may seek a protective order from the court addressing the scope,
timing, and form of disclosures.

Timing: Exculpatory information, regardless of whether the
information is memorialized, must be disclosed to the defendant reasonably
promptly after discovery. Impeachment information, which depends on the
prosecutor's decision on who is or may be called as a government witness,
will typically be disclosed at a reasonable time before trial to allow the
trial to proceed efficiently. See
USAM 9-5.001. Section 9-5.001 also notes, however, that witness
security, national security, or other issues may require that disclosures of
impeachment information be made at a time and in a manner consistent with
the policy embodied in the Jencks Act. Prosecutors should be attentive to
controlling law in their circuit and district governing disclosure
obligations at various stages of litigation, such as pre-trial hearings,
guilty pleas, and sentencing.

Prosecutors should consult the local discovery rules for the district in
which a case has been indicted. Many districts have broad, automatic
discovery rules that require Rule 16 materials to be produced without a
request by the defendant and within a specified time frame, unless a court
order has been entered delaying discovery, as is common in complex cases.
Prosecutors must comply with these local rules, applicable case law. and any
final court order regarding discovery. In the absence of guidance from such
local rules or court orders, prosecutors should consider making Rule 16
materials available as soon as is reasonably practical but must make
disclosure no later than a reasonable time before trial. In deciding when
and in what format to provide discovery. prosecutors should always consider
security concerns and the other factors set forth in subparagraph (A) above.
Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E)
materials in a manner that triggers the reciprocal discovery obligations in
Fcd.R.Crim.P. 16(b)(1).

Discovery obligations are continuing, and prosecutors should always be alert
to developments occurring up to and through trial of the case that may
impact their discovery obligations and require disclosure of information
that was previously not disclosed.

Form of Disclosure: There may be instances when it is not
advisable to turn over discoverable information in its original form, such as
when the disclosure would create security concerns or when such information
is contained in altorney notes, internal agency documents, confidential
source documents, Suspicious Activity Reports, etc. If discoverable
information is not provided in its original form and is instead provided in
a letter to defense counsel, including particular language, where pertinent,
prosecutors should take great care to ensure that the full scope of
pertinent information is provided to the defendant.

Step 4: Making a Record

One of the most important steps in the discovery process is keeping good
records regarding disclosures. Prosecutors should make a record of when and
how information is disclosed or otherwise made available. While discovery
matters are often the subject of ligation in criminal cases, keeping a
record of the disclosures confines the litigation to substantive matters and
avoids time-consuming disputes about what was disclosed. These records can
also be critical when responding to petitions for post-conviction relief,
which are often filed long after the trial of the case. Keeping accurate
records of the evidence disclosed is no less important than the other steps
discussed above, and poor records can negate all of the work that went into
taking the first three steps.

Conclusion

Compliance with discovery obligations is important for a number of
reasons. First and foremost, however, such compliance will facilitate a fair
and just result in every case, which is the Department's singular goal in
pursuing a criminal prosecution. This guidance does not and could not answer
every discovery question because those obligations are often fact specific.
However, prosecutors have at their disposal an array of resources intended
to assist them in evaluating their discovery obligations including
supervisors, discovery coordinators in each office, the Professional
Responsibility Advisory Office, and online resources available on the
Department's intranet website, not to mention the experienced career
prosecutors throughout the Department. And, additional resources are being
developed through efforts that will be overseen by a full-time discovery
expert who will be detailed to Washington from the field. By evaluating
discovery obligations pursuant to the methodical and thoughtful approach set
forth in this guidance and taking advantage of available resources,
prosecutors are more likely to meet their discovery obligations in every
case and in so doing achieve a just and final result in every criminal
prosecution. Thank you very much for your efforts to achieve those most
important objectives.

FN 1. For the purposes of this memorandum, "discovery" or "discoverable
information" includes information required to be disclosed by Fed.R.Crim.P.
16 and 26.2, the Jencks Act, Brady, and Giglio, and additional
information disclosable pursuant to
USAM 9-5.001.

FN 5. "Interview" as used herein refers to a formal question and answer
session with a potential witness conducted for the purpose of obtaining
information pertinent to a matter or case. It does not include conversations
with a potential witness for the purpose of scheduling or attending to other
ministerial matters. Potential witnesses may provide substantive information
outside of a formal interview, however. Substantive, case-related
communications are addressed above.

FN 6. In those instanccs in which an interview was audio or video recorded,
further memorialization will generally not be necessary.